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Transcript of Sentencing Proceedings — Andre Lee Gaines
Summary
The transcript of the October 5, 2021 sentencing of Andre Lee Gaines, Docket Nos. 1:20-CR-00296-JPB and 1:21-CR-00206-JPB, before U.S. District Judge J.P. Boulee in the U.S. District Court for the Northern District of Georgia, filed February 2, 2024, as Document 896. The court recites that Gaines pled guilty on June 17, 2021 to Count 1 of the information for a false, fictitious and fraudulent statement to a department or agency of the United States, and finds a total offense level of 12 and a range of 10 to 16 months. Defense counsel Brian Mendelsohn seeks a downward departure and variance to probation, citing Gaines's age, health, 21 years of Navy service and agreement to pay restitution, and the court itself raises a departure under 5H1.11. The hearing concluded at 1:52 PM.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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“Transcript of Sentencing Proceedings — Andre Lee Gaines.”
Original at ecf.gand.uscourts.gov, No. 1:20-cr-00296-JPB-CMS, Doc. 896. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-dixon/2021-10-05-sentencing-transcript-dkt-896/
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1 UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
2 ATLANTA DIVISION
3
4 UNITED STATES OF AMERICA, )
)
5 )
-VS- ) DOCKET NO. 1:20-CR-00296-JPB
6 ) 1:21-CR-00206-JPB
ANDRE LEE GAINES, )
7 )
DEFENDANT. )
8
9 TRANSCRIPT OF SENTENCING PROCEEDINGS
BEFORE THE HONORABLE J.P. BOULEE
10 UNITED STATES DISTRICT JUDGE
OCTOBER 5, 2021
11
12
13
14 APPEARANCES:
15 ON BEHALF OF THE GOVERNMENT:
TAL COHEN CHAIKEN, ESQ.
16 NATHAN KITCHENS, ESQ.
ASSISTANT UNITED STATES ATTORNEY
17
18 ON BEHALF OF THE DEFENDANT:
BRIAN MENDELSOHN, ESQ.
19
20
21
22 STENOGRAPHICALLY RECORDED BY:
23 PENNY PRITTY COUDRIET, RMR, CRR
OFFICIAL COURT REPORTER
24 UNITED STATES DISTRICT COURT
ATLANTA, GEORGIA
25
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1 COURTROOM DEPUTY CLERK: This is case 21-CR-206,
2 USA v. Gaines.
3 MR. KITCHENS: Good afternoon, your Honor. Nathan
4 Kitchens on behalf of the government. I'm here with my
5 colleague AUSA Tal Chaiken, as well as Special Agents Joe
6 Stites and Stefan Bublitz.
7 MR. MENDELSOHN: Good afternoon, Judge. Brian
8 Mendelsohn here with Mr. Gaines.
9 THE COURT: Good to see you, Mr. Mendelsohn.
10 And good afternoon to you as well, Mr. Gaines.
11 OFFICER RIDLEY: Maria Ridley on behalf of the United
12 States Probation Office.
13 THE COURT: Good to see you, Officer.
14 Mr. Gaines pled guilty on June 17th, 2021, to Count 1
15 of the information for false, fictitious and fraudulent
16 statement and representation to a department or agency of the
17 United States.
18 In accordance with Rule 32 of the Federal Rules of
19 Criminal Procedure, the United States Probation Office has
20 conducted a presentence investigation and prepared a
21 presentence report, a copy of which has been provided to both
22 the government and the defense.
23 Mr. Mendelsohn, have you and your client had an
24 opportunity to read and discuss the presentence report?
25 MR. MENDELSOHN: Yes, we have.
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1 THE COURT: Do you have any questions about the
2 presentence report or any amendments now other than what's
3 been previously filed?
4 MR. MENDELSOHN: No, Judge.
5 THE COURT: It appears from the record that there are
6 no objections to the findings of fact or conclusions of law in
7 the presentence report by the government or the defense.
8 Is that correct?
9 MR. KITCHENS: That's correct, your Honor.
10 MR. MENDELSOHN: Yes, that's correct.
11 THE COURT: And I understand, Mr. Mendelsohn, that
12 you are seeking a downward departure on various grounds,
13 correct?
14 MR. MENDELSOHN: That's correct, Judge. I mean,
15 it's -- I've asked for a downward departure and a downward
16 variance. They're overlapping, so I think they -- they're one
17 and the same in many ways.
18 THE COURT: Okay. Sometimes when they're not really
19 overlapping, I will handle the departure requests first and
20 hear argument from both of you on that and then move on.
21 Other times when they are overlapping, it's my preference to
22 just hear argument on everything at once, whether it's a
23 departure or a variance or just general 3553(a) factors.
24 Is anyone opposed to just hearing argument on all of
25 that later in this proceeding?
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1 MR. KITCHENS: No, your Honor.
2 MR. MENDELSOHN: That's fine.
3 THE COURT: I would like to do this at least. I want
4 to go over which grounds for departure you're seeking so I can
5 just make sure that the record's clear on that.
6 And I wanted to note one additional ground that the
7 Court is considering, I guess, on its own motion, and that is
8 5H1.11, which is military, civic, charitable or public
9 service, employment-related contributions, record of prior
10 good works to consider based on his 20 years of service to the
11 Navy and his honorable discharge, a downward departure based
12 on 5H1.11. And I'll be happy to hear from counsel from either
13 side about the propriety of such departure when you make your
14 arguments as to sentencing.
15 Other than that, Mr. Mendelsohn, it looked like
16 5H1.1, 1.3, 1.4 for starters, is that correct?
17 MR. MENDELSOHN: That's correct.
18 THE COURT: And in addition --
19 MR. MENDELSOHN: 5K2.20.
20 THE COURT: 5K2.20?
21 MR. MENDELSOHN: Yes.
22 THE COURT: And I think that was it. Are there any
23 others?
24 MR. MENDELSOHN: That's it.
25 THE COURT: Okay. All right.
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1 I will, therefore, adopt the findings of fact and
2 conclusions of law in the presentence report with the
3 understanding that I will consider the departure requests
4 later in this proceeding.
5 Based on the findings of fact and conclusions of law
6 the guideline calculations are as follows:
7 Base offense level of 6;
8 Adjusted offense level of 14;
9 Total offense level of 12;
10 Criminal History Category of I;
11 Recommended sentencing range not more than five years
12 imprisonment, $250,000 fine or twice the gain or twice the
13 loss, whichever is greater;
14 Then fine guideline range of 5,500 to 55,000;
15 Term of supervised release of one to three years;
16 Special assessment of $100.
17 But I also had it as 10 to 16 months.
18 MR. KITCHENS: That's correct, your Honor.
19 THE COURT: Okay. Agree, Mr. Mendelsohn?
20 MR. MENDELSOHN: Yes. That's correct.
21 THE COURT: So no objections to the guideline
22 calculations as stated by the Court?
23 MR. KITCHENS: No objections, your Honor.
24 MR. MENDELSOHN: Yes, no objections.
25 THE COURT: All right. I may have some questions --
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1 specific questions for you later, but let me go ahead and hear
2 from counsel in a moment. Before I do, I want to let you know
3 that I've reviewed the presentence report as well as the
4 defense's sentencing memorandum.
5 Are there any victims that wish to be heard in this
6 proceeding?
7 MR. KITCHENS: No, your Honor.
8 THE COURT: Any witnesses on behalf of the defendant?
9 MR. MENDELSOHN: No, Judge.
10 THE COURT: Any other documents or letters for the
11 Court?
12 MR. KITCHENS: No, your Honor.
13 MR. MENDELSOHN: No.
14 THE COURT: Mr. Mendelsohn, would you like to make
15 any argument on behalf of your client regarding sentencing?
16 MR. MENDELSOHN: Certainly.
17 THE COURT: Go ahead.
18 MR. MENDELSOHN: Judge, I believe I've laid out most
19 of the arguments in the sentencing memo.
20 You know, it's kind of like the old days where we
21 used to talk about downward departures. I haven't had to do
22 that in awhile since these grounds are generally taken up by
23 the downward variance grounds.
24 But, you know, on the departure issues, the
25 Commission and the Supreme Court talked about cases that are
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1 outside the heartland in order to qualify for the downward
2 departure. So if it's a heartland case, it's really not a
3 ground for a downward departure, but the unusual cases, the
4 one's that are outside the heartland, are the ones that do
5 qualify.
6 And, you know, the factors identified, the age,
7 mental condition, physical health as well as the aberrant
8 behavior are what they used to refer to as encouraged factors
9 under the guidelines. So they identified these grounds as
10 downward departures and encouraged them in certain situations
11 where you have a defendant outside of the heartland in an
12 extraordinary situation.
13 I think Mr. Gaines, given his medical conditions,
14 his age and his physical conditions certainly is someone who
15 is outside the heartland. He is very much atypical of the
16 defendants that the Court sees in any of these cases.
17 I counted up I think it was 17 different physical
18 ailments and 19 different medications. And, you know, the
19 physical ailments are serious. He's had a number of strokes
20 predating the incidents here in this case. Those strokes have
21 affected his cognitive ability pretty substantially. I mean,
22 he went from somebody who was able to successfully and
23 honorably serve for 21 years in the military to somebody whose
24 IQ on the IQ testing is now between the second and the eighth
25 percentile. And I think that's a really significant drop.
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1 Plus you add the cognitive difficulties associated
2 with his executive functioning problems, his ability to reason
3 and make those higher-level kinds of decisions and thinking.
4 So, again, that's another extraordinary step.
5 And then when you factor in his age, at 67 he would
6 be in the oldest couple percent of a prison population. And
7 certainly with his medical issues and his physical issues, the
8 cost of incarceration for him would be extraordinary,
9 substantially higher than a normal inmate.
10 So as the guidelines talk about looking for
11 alternate -- or less costly alternatives to incarceration,
12 certainly a term of probation would be a less costly term --
13 alternative to incarceration.
14 So when you -- and I think when we're talking about
15 the downward departure grounds, age, physical condition and
16 mental condition, they sort of refer to each other where they
17 say it's one thing if you're elderly, but if you're elderly
18 and infirm, then you're really in the position to qualify for
19 this. And I think Mr. Gaines certainly meets those
20 definitions.
21 As to the issue of aberrant behavior under 5K2.20, I
22 think his record really speaks for itself. Twenty-one years
23 of honorable service in the Navy, his successful career at the
24 post office, going 67 years without having even an arrest
25 certainly shows that this is some behavior that is far outside
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1 the norm for him.
2 Certainly I think the -- his cognitive deficits got
3 him into this mess and contributed to his involvement in this
4 situation. And so it is certainly aberrant and it's rolled up
5 into the other deficits that he has.
6 So for all of those grounds I think he would qualify
7 for a downward departure. Certainly there are also grounds
8 for a downward variance under 3553 taking into account his
9 history and characteristics and the circumstances of the
10 offense.
11 And, you know, the Court did bring up his honorable
12 service, his military civic record. Certainly 20 years of
13 honorable service would qualify under the guidelines. And I
14 would -- I kind of feel bad that the Court is picking up a
15 departure ground that I didn't, but certainly I think he would
16 fit right into that as well. And, of course, that also is a
17 ground for a downward variance.
18 I talked about the difficulties in prison in the
19 sentencing memo. I don't think I need to repeat a lot of
20 those. I think it's obvious that he would be incredibly
21 vulnerable in prison, just -- I don't know how he could even
22 function quite frankly. And certainly would be an easy target
23 for predators inside the prison system.
24 Also talked about a little bit in the sentencing
25 memo, and I don't think it's the key point here, but he agreed
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1 to the restitution in this case. I think that could have been
2 an argument that we had. I mean, the loss amount -- the
3 government agreed and the probation office found that the loss
4 amount from the PPP part of the case did not apply here to
5 these guidelines. And I think there would have been an
6 argument that he wouldn't have been obligated for restitution.
7 It could have gone either way potentially. But as part of his
8 acceptance of responsibility he agreed to that.
9 Now, it's going to be burdensome for him, it's going
10 to be something that he's going to have for a long time, but
11 it's also something that he never, for lack of a better word,
12 enjoyed the benefits of the money from that case. It all went
13 to co-defendants who I think were the ones who lured him into
14 this. And the money that was left sitting in his account was
15 seized by the government. So, you know, he's not somebody who
16 was out there buying fancy cars or doing any kind of big
17 spending. The money was just sitting there.
18 So, despite that, he is still on the hook for the
19 restitution, and I think that's a further ground for a
20 variance. So we would ask the Court to vary down to
21 probation.
22 THE COURT: All right. Thank you.
23 And, I'm sorry, I don't know if Mr. Gaines would like
24 to make a statement on his own behalf, but let me explain to
25 you, Mr. Gaines, I've read what your attorney has supplied to
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1 the Court in a sentencing memorandum, and I've heard his
2 arguments, but I would be happy to hear from you as well, sir,
3 if you would like to say anything on your own behalf before I
4 sentence you this afternoon.
5 THE DEFENDANT: No, I would not like to say anything.
6 THE COURT: Okay. Thank you, sir.
7 Mr. Kitchens.
8 MR. KITCHENS: Thank you, your Honor.
9 We ultimately agree with much of what Mr. Mendelsohn
10 has said. And, in fact, we agree that a sentence of
11 probation is ultimately the appropriate one here based on
12 the consideration of the Section 3553(a) factors.
13 While I think we agree with that final destination, I
14 think the parties disagree to some extent about the path to
15 get there. We think appropriately that a downward variance
16 should apply to basically get him to that probationary range
17 rather than the downward departure. So I'll briefly discuss
18 those downward departures before explaining the basis for why
19 the government thinks that a downward variance is proper here.
20 For the various grounds that the -- I'll start with
21 kind of the preliminary grounds that Mr. Mendelsohn has
22 raised. His age, the mental and emotional conditions for
23 Mr. Gaines, and then his physical condition as well.
24 Under the guidelines there's the same test ultimately
25 for each of those, which is that the Court should consider a
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1 departure if the issues based on age, mental condition or
2 physical condition are present to an unusual degree that
3 distinguishes the case from a typical case that the Court
4 would see.
5 The downward departure under 5H1.4 adds a little bit
6 more context and it notes that it may apply in the case of an
7 extraordinary physical impairment or if a defendant is
8 seriously infirmed. I think that consideration and what's
9 described in the guidelines really shows the high legal bar
10 that the Court needs to reach to find any of those downward
11 departures apply.
12 We certainly think that they are significant facts
13 regarding Mr. Gaines' conditions and his unique conditions
14 that support a variance, and we'll discuss that. But I don't
15 think it meets the high bar that's required for the Court to
16 find that he meets one of those downward departure grounds.
17 I think Mr. Mendelsohn fairly notes in his sentencing
18 memorandum that as a 67-year-old defendant Mr. Gaines would
19 surely be on the older side of defendants that are in the
20 prison system. That is certainly the case, the government
21 agrees. However, it's also the case that we certainly have
22 defendants in our district that are older. It is not uncommon
23 in fraud cases that you will have defendants in their late 60s
24 that are facing punishment for crimes that they did against
25 others. It's not the case that every defendant who is in
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1 their late 60s qualifies for a downward departure just based
2 on their age.
3 Similarly with those physical conditions that are
4 outlined in paragraphs 47 through 50 of the PSR, I think
5 Mr. Mendelsohn fairly notes that, again, many of those
6 conditions -- and there are a lot of them, some of them are
7 significant and they are chronic issues. But I think based on
8 the case law that have developed regarding a departure based
9 on physical conditions, it would not qualify as extraordinary
10 by themselves.
11 The cases interpreting the guidelines and this
12 downward departure have really underscored how rare it is
13 that this downward departure would apply. I think in
14 deVegter, and the Eleventh Circuit certainly noted, that this
15 was a discouraged ground for a downward departure.
16 The Court may recall in Mr. Benoit's sentencing some
17 of the cases that were cited, I think they were mostly
18 out-of-circuit cases, but they were cited describing some of
19 the few instances where those type of departures would apply.
20 And it was a case -- I think one was a defendant suffering
21 from a brain tumor. And there was a 78-year-old with
22 depression and coronary artery disease.
23 Other cases actually in the Eleventh Circuit have
24 denied the application of a downward departure when the
25 defendant similarly faced very serious health conditions,
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1 things like lymphoma, renal kidney disease, Sickle cell
2 anemia, HIV. The fact is that the way that the case law has
3 developed it takes a truly extraordinary amount of physical
4 infirmity for that downward departure to apply.
5 And then it's similar ultimately for the mental and
6 emotional health downward departure. I think, again, the PSR
7 outlines this and describes this very well in paragraphs 51
8 through 52. And then, of course, there's the report attached
9 to the PSR as well. And those are significant issues. We do
10 not diminish them in any way. And I think that, again, is an
11 important factor in the government's ultimate sentencing
12 recommendation. But based on the case law and how it is
13 developed does not seem to meet the legal requirement of what
14 is present in an unusual degree.
15 There's a case, just to give an example, United
16 States v. Astudillo-Carvajal, that's 788 Fed.Appx. 677. It's
17 an Eleventh Circuit case from 2019 where the district court
18 there denied a request for downward departure when there was a
19 finding that the defendant suffered from major depression,
20 post-traumatic stress disorder, had low intelligence, various
21 other cognitive issues. And the Eleventh Circuit noted it did
22 not have jurisdiction essentially to review the denial of that
23 downward departure. But I thought it was telling in that case
24 with the district court, while it denied the downward
25 departure, it ultimately varied downward 30 months in that
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1 case. And I think that analysis is instructive and ultimately
2 what the government recommends here in terms of the proper
3 context in which to consider those unique history and
4 characteristics of the defendant.
5 With the aberrant conduct downward departure under
6 5K2.20, there's also an Eleventh Circuit case that I think is
7 instructive on this. It's United States v. Orrega, that's 363
8 F.3d, 1093. That's an Eleventh Circuit case from 2004. It,
9 again, has very similar language in noting that that downward
10 departure applies only in extraordinary cases. And it held
11 that the commission of two criminal acts by, in that case,
12 having two separate conversations with an undercover agent in
13 an enticement case barred the defendant from receiving that
14 particular downward departure under 5K2.20.
15 Here we don't disagree at all with Mr. Mendelsohn in
16 terms of Mr. Gaines' lifetime of good acts in the community
17 and his military service and civic service as well, but he
18 did, in fact, commit two separate criminal acts as part of
19 this 1001 offense. This was two separate calls and
20 conversations containing false statements with Special Agent
21 Joe Stites.
22 Paragraph 16 of the PSR describes the first one in
23 which Mr. Gaines, when he was initially called by Agent
24 Stites, reported that Gaines Reservation & Travel had five to
25 six employees. And when at that point Special Agent Stites
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1 noted the fact there was 69 employees listed in the PPP loan
2 application for Gaines Reservation & Travel, Mr. Gaines said
3 he needed to review the full documents. Now, of course, at
4 that time Mr. Gaines knew full well that Gaines Reservation &
5 Travel had no employees, and yet he made those false
6 statements and said that he needed to review documents.
7 There's then a second call which is described in
8 paragraph 17. And that occurs the same day but it's two
9 separate incidents. And in that second call Mr. Gaines
10 claimed that Gaines Reservation & Travel did, in fact, have 69
11 employees, that it had a large monthly payroll. And that, of
12 course, and we do not dispute, that those were based on
13 essentially, you know, items that Darrell Thomas coached him
14 to say in response.
15 We do not, you know, again, have any dispute about
16 that; however, there were two separate incidents in which
17 Mr. Gaines provided false statements to Special Agent Stites.
18 And based on that, the departure under 5K2.20 does not apply.
19 The Court notes 5H1.11 also could apply and provide a
20 measure -- or reason for downward departure. I confess, I
21 have not reviewed that and researched it to figure out cases
22 that have interpreted it to see if it has been in a similar
23 context.
24 But Mr. Gaines certainly does have significant
25 military service, you know, more than two decades of service
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1 for the Navy. I'm not sure, but ultimately, you know, the
2 cases that have applied to that, it does have -- that same
3 language about the military service has to be present in an
4 unusual degree and it is otherwise discouraged. Again, that's
5 consistent with our view, which is that the appropriate way to
6 consider all of those factors for Mr. Gaines and all the
7 things that would point towards a probationary sentence is
8 taken through the lens of a downward variance rather than
9 through a downward departure. And that is just simply as a
10 result of how the case law has developed, that it is truly the
11 rare case where a downward departure based on those grounds
12 would apply.
13 And I think Mr. Mendelsohn himself ultimately, you
14 know, recognized that in his sentencing memo where he notes
15 that the Court could apply a downward variance based on very
16 similar grounds without -- I think his words were apt, without
17 essentially jumping through the hoop of finding a downward
18 departure.
19 And that ultimately is the government's
20 recommendation based on our full consideration of the Section
21 3553(a) factors. We do think a probationary sentence here is
22 proper.
23 I think the primary thing that is guiding that
24 recommendation is the history and characteristics of
25 Mr. Gaines. And that I think has been eloquently stated by
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1 Mr. Mendelsohn both in his sentencing memorandum as well as
2 his argument today.
3 It is clear to us that while the -- each individual
4 factor, even taken in combination of his age and health
5 conditions and his cognitive issues, are not enough to meet
6 kind of that legal bar of a downward departure. It is a
7 significant factor not only in terms of his commission of the
8 underlying offense, but also in terms of the outcomes that he
9 could face and the propriety of the sentence that the Court
10 would impose in terms of what he would be looking at and how
11 he would respond to a prison sentence.
12 In terms of his commission -- how it affected his
13 conduct in the commission of the offense, we certainly have
14 heard defendants that have noted that they were duped by
15 Darrell Thomas and others in certain cases, that they were
16 roped into this scheme, maybe did not know each and every
17 detail but yet still knowingly participated in the fraud.
18 We do think to some measure that that is true for
19 even all those other defendants, that they were -- to some
20 degree may have been misled by Darrell Thomas and others. But
21 what distinguishes Mr. Gaines here from the other defendants
22 and I think takes him out of the heartland of those other
23 defendants is the unique role that his health conditions
24 played in making him vulnerable. And that is I think the
25 language that was highlighted specifically in Mr. Mendelsohn's
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1 sentencing memo, that it essentially noted that he was
2 exceptionally vulnerable to manipulation. He did not have any
3 sort of understanding of the larger scheme. Was used
4 essentially as a tool for others simply because he had a
5 dormant corporation that he had funded and that was
6 essentially taken advantage of by a family member.
7 As a result of that, you know, ultimately, as we
8 learned more about the case, this is why I think the Court
9 heard that we have a sentence being imposed not on an
10 underlying participation in the PPP loan fraud but based on
11 the lies that were told to Special Agent Stites.
12 We also agree with Mr. Mendelsohn that prison is not
13 the proper environment for someone with Mr. Gaines'
14 conditions. Mr. Gaines is not one who would benefit from the
15 educational or vocational training at a prison facility. He's
16 not someone that needs rehabilitation. He would have to
17 receive medical care, of course, provided by the Bureau of
18 Prisons. And that would be not only, as Mr. Mendelsohn notes,
19 extremely costly for the government, but it would not
20 ultimately serve a beneficial role really for the justice
21 system in terms of either deterrence or rehabilitation for a
22 defendant that is facing Mr. Gaines' unique circumstances.
23 The countervailing concern, of course, in many cases
24 is the seriousness of the offense and the need to afford
25 adequate deterrence. I don't think ultimately that the
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1 government's recommendation of probation in this case
2 diminishes the seriousness of the offense or the need for
3 deterrence.
4 The fact, as I already noted, was that Mr. Gaines did
5 not knowingly participate in the underlying PPP fraud. He is,
6 of course, being sentenced just based on that false statement
7 to the agents. And that is significant by itself. He did
8 knowingly lie to Special Agent Stites. Mr. Gaines understood
9 at the time the difference between the truth and a lie, he
10 knew that he was lying to the federal agent, and he knew it
11 was wrong when he did it.
12 Lying to a federal agent during an investigation can
13 have meaningful consequences to the whole justice system.
14 Those lies can be corrosive and they have a corrosive effect
15 on others. It can impede the ability for law enforcement to
16 detect and deter criminal conduct. And indeed criminal
17 conduct in this case was ongoing after Mr. Gaines had this
18 interview with Special Agent Stites.
19 So the nature of this offense itself is significant,
20 and I don't mean to diminish the seriousness of it. And
21 general deterrence is a fair factor for the Court's
22 consideration to deter others from making similar lies.
23 But ultimately I think that our concern with those
24 two factors is lessened for two reasons. First, again, is
25 Mr. Gaines' health conditions that make him a very unique
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1 defendant. And second is Mr. Gaines' conduct after sentencing
2 in this case. I won't belabor the point because we've already
3 I think on both sides discussed more details about Mr. Gaines'
4 unique cognitive and physical conditions but it certainly
5 affected his decision making here.
6 It is unlikely that a prison sentence here would
7 deter those with the same condition. And those without the
8 same condition would not be deterred either by sending
9 Mr. Gaines to prison.
10 I think also that Mr. Gaines' conduct since he was
11 charged in this case also shows not only his remorse but also
12 constructive steps that he's taken that reaffirm really the
13 lower need for deterrence and the fact that probation is
14 proper here.
15 As Mr. Mendelsohn noted he agreed to pay full
16 restitution here in this case. He pled early. He did not
17 file any sort of motions. Furthermore, he provided, you know,
18 a statement to the government clarifying his role in the
19 offense and the role of others. All of those steps I think
20 are constructive and show Mr. Gaines' acceptance of
21 responsibility to a significant degree and his understanding
22 of what he did was wrong. And it does not seem in light of
23 all those circumstances that a sentence of imprisonment would
24 serve either Mr. Gaines or the justice system.
25 So overall we agree with Mr. Mendelsohn that a
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1 downward variance is proper. We think that it -- under
2 the Section 3553(a) factors it reflects the history and
3 characteristics of the defendant while also taking into
4 account the seriousness of the offense and the need for
5 deterrence.
6 We think it is a fair result based on the offense
7 and it is the just result given Mr. Gaines' unique health
8 conditions and making sure that, you know, he has accepted
9 responsibility for his offense.
10 THE COURT: Thank you, Mr. Kitchens.
11 I'm attempted to ask you for a few of those case
12 cites. I got some of them but not all of them, and I don't
13 have realtime right now, but before I do that I'm going to ask
14 Mr. Mendelsohn a question. I may not need them.
15 And I will say that I tend to agree with you,
16 Mr. Kitchens, as to 5H1.1, age and 5K2.20, aberrant behavior.
17 I think it's probably a closer call 5H1.3 as to mental health,
18 5H1.4, physical condition, and 5H1.11 as far as his military
19 service. So I'm conditioned on my question for
20 Mr. Mendelsohn here in a second, I may want some of those case
21 cites, and I'm probably going to want to look at those cases.
22 But I may not need to.
23 Mr. Mendelsohn, you've asked me for, on behalf of
24 your client, a sentence of probation either via variance or
25 via departure. Mr. Kitchens has stood up on behalf of the
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1 government and said, your Honor, we agree there should be a
2 variance to a probationary sentence here. If I were to agree
3 with your argument and Mr. Kitchens' argument about variance
4 and be prepared to sentence your client to a sentence of
5 probation, would you be waiving your request for a departure
6 or would you still want me to rule on the formality of the
7 departure request?
8 MR. MENDELSOHN: I think the Court's determination
9 that it would vary would probably moot out the departure
10 request, so I would be happy to withdraw that.
11 THE COURT: Very well.
12 Is there any other matter that the Court needs to
13 take up or anything else from either side before I issue
14 sentence in this case?
15 MR. KITCHENS: Just this is, again, sort of a
16 formality, but to be clear again, we -- and this is consistent
17 with the plea agreement, we will be dismissing the charges
18 against Mr. Gaines that are in the original indictment.
19 That's in case number 1:20-CR-296.
20 THE COURT: All right. Very well.
21 Mr. Gaines, if you could please stand, sir.
22 Pursuant to the Sentencing Reform Act of 1984, it's
23 the judgment of the Court that you, Andre Lee Gaines, are
24 sentenced to five years probation as to Count 1.
25 Sir, I'm going to read some other portions of your
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1 sentence, but you can have a seat at this point, sir.
2 It's further ordered that the defendant shall pay to
3 the United States a special assessment of $100 which shall be
4 due immediately. The Court finds that the defendant does not
5 have the ability to pay a fine, therefore, the Court will
6 waive the fine in this case.
7 It's further ordered that the defendant shall make
8 restitution in the amount of $806,710 to the Clerk of Court
9 for distribution to the following victims:
10 Cross River Bank in the amount of $782,508.70. And
11 the US Small Business Administration, $24,201.30.
12 And I will say to my able law clerk, I appreciate her
13 writing out those numbers for me. I've had a sentencing
14 recently with a lot of big numbers in it and she must have
15 been here and heard me butcher those. So thank you.
16 Restitution shall be paid in full immediately. The
17 Court determines that you do not have the ability to pay
18 interest and it is ordered that the interest requirement is
19 waived for restitution.
20 You must pay the above-noted financial penalties in
21 accordance with the schedule of payment sheet of the judgment.
22 All criminal monetary penalties are to be made
23 payable to the Clerk, US District Court, 2211 US Courthouse,
24 75 Ted Turner Drive, Southwest, Atlanta, Georgia, 30303.
25 Any balance that remains unpaid at the commencement
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1 of the term of supervision shall commence within 30 days of
2 this judgment on the following terms:
3 Payable at a rate of no less than 250 monthly to the
4 US District Court Clerk.
5 You must notify the Court of any changes in economic
6 circumstances that might affect the ability to pay this
7 financial penalty.
8 You must report to the probation office in the
9 federal judicial district where you are authorized to reside
10 within 72 hours of the time you are sentenced unless the
11 probation officer instructs you to report to a different
12 probation office or within a different time frame.
13 While on probation you must comply with the following
14 mandatory conditions:
15 You must not commit another federal, state or local
16 crime.
17 You must not unlawfully possess a controlled
18 substance.
19 You must refrain from any unlawful use of a
20 controlled substance.
21 The drug testing condition is suspended based on
22 the Court's determination that you pose low risk of future
23 substance abuse.
24 You must cooperate in the collection of DNA as
25 directed by the probation officer.
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1 You must make restitution in accordance with 18 USC,
2 Sections 2248, 2259, 2264, 2327, 3663, 3363(a) and 3664.
3 As part of your probation you must comply with the
4 standard conditions of supervision. These conditions are
5 imposed because they establish basic expectations for your
6 behavior while on supervision and identify the minimum tools
7 needed by probation officers to keep informed, report to the
8 Court and bring about improvements in your conduct and
9 condition. The standard conditions of supervision will be
10 included in your judgment.
11 You must comply with the following special conditions
12 during the term of probation:
13 You must make full and complete disclosure of your
14 finances and submit an audit to your -- of your financial
15 documents at the request of your probation officer.
16 You must provide the probation officer with full and
17 complete access to any requested financial information and
18 authorize the release of any financial information. The
19 probation office may share the financial information with the
20 United States Attorney's Office.
21 You must not incur new credit card charges or open
22 additional lines of credit without the approval of the
23 probation officer.
24 You must submit your person, property, house,
25 residence, vehicle, papers, computers, other electronic
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1 communications or data storage devices or media or office to a
2 search conducted by a United States Probation Officer.
3 Failure to submit to a search may be grounds for revocation of
4 release.
5 You must warn any other occupants that the premises
6 may be subject to searches pursuant to this condition.
7 An officer may conduct a search pursuant to this
8 condition only when reasonable suspicion exists that you
9 violated a condition of your supervision and that areas to be
10 searched contain evidence of this violation.
11 Any search must be conducted at a reasonable time and
12 in a reasonable manner.
13 You must permit confiscation and/or disposal of any
14 material considered to be contraband or any other item which
15 may be deemed to have evidentiary value of violations of
16 supervision.
17 This sentence is made in view of the sentencing goals
18 delineated in 18 USC, Section 3553(a), and the parties'
19 arguments as to those factors, including:
20 The nature and circumstances of the offense and the
21 history and characteristics of the defendant;
22 The need for the sentence imposed to reflect the
23 seriousness of the offense, to afford adequate deterrence and
24 to protect the public;
25 The kinds of sentences available;
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1 The kinds of sentence in the sentencing range
2 established for the applicable category of offense committed
3 as set forth in the sentencing guidelines;
4 Any pertinent policy statement;
5 The need to avoid sentencing disparity;
6 And the need to provide restitution to victims.
7 This sentence meets the criteria of punishment,
8 deterrence and incapacitation and is sufficient but not
9 greater than necessary to comply with the directives of
10 Section 3553(a).
11 Based on these considerations, I find that this is a
12 just and appropriate sentence, particularly in light of the
13 defendant's age, his mental issues, his physical issues, the
14 fact that other than this offense he has not engaged in
15 criminal activity in his life to any degree.
16 I think also that his military service is important
17 as I consider the history and characteristics of the
18 defendant. The record will reflect that he served 20 years.
19 I think it was '73 to '94, so it might have even been
20 21 years. I'm not sure what part of each year, but you served
21 20 years in the Navy, including overseas service, and was
22 honorably discharged.
23 So, sir, I appreciate your service to our country and
24 your willingness to take an oath to give your life so that the
25 rest of us can live free.
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1 However, this is still a serious crime and warrants
2 punishment and warrants the punishment of probation.
3 But based on all of the 3553(a) factors, I do believe
4 that it's warranted to vary downward here. Given that I have
5 varied downward, I understand the defense has withdrawn their
6 request for departure, so I do not reach the departure
7 grounds.
8 Is that correct, Mr. Mendelsohn?
9 MR. MENDELSOHN: That is.
10 THE COURT: Before I advise the defendant of his
11 appeal rights, does the government or the defendant have any
12 further objections to the findings of the Court, the guideline
13 calculations or to the sentence or manner in which it's been
14 pronounced?
15 MR. KITCHENS: No objections, your Honor. Just two
16 notes.
17 First, with the restitution order that your Honor
18 imposed, I wanted to note that it should be joint and several
19 with several other defendants that are in the indictment in
20 20-CR-296.
21 THE COURT: All right. Let me just put that on the
22 record.
23 And, yes, that wasn't in the materials I received but
24 that would seem to make sense. The restitution that I've
25 announced earlier, and Mr. Mendelsohn I'm assuming you don't
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1 disagree or have any argument on this, will be joint and
2 several with the other defendants in indictment number --
3 MR. KITCHENS: 20-CR-296.
4 THE COURT: -- 20-CR-296.
5 Mr. Mendelsohn, is that correct?
6 MR. MENDELSOHN: That is correct. And I was actually
7 going to bring up specifically John Gaines, Darrell Thomas and
8 Carla Jackson.
9 THE COURT: The Court concurs. So noted.
10 You had something else, Mr. Kitchens?
11 MR. KITCHENS: We think -- those three I think, the
12 additional defendants that were charged in connection with
13 Gaines Reservation & Travel, of that loan, and the superseding
14 indictment would include Teldrin Foster and we believe Jesika
15 Blakely as well. We can double-check, but we think it's
16 Jesika Blakely.
17 THE COURT: Mr. Mendelsohn.
18 MR. MENDELSOHN: That's fine. We dropped out of that
19 case largely before the others were added, but to the extent
20 these others participated in preparing the paperwork for that
21 case, we would concur.
22 THE COURT: What I'll do is it will be joint and
23 several with the other two names just mentioned by
24 Mr. Kitchens as well, which are --
25 MR. KITCHENS: Teldrin Foster and Jesika Blakely.
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1 THE COURT: Very well.
2 And, Mr. Kitchens, if you after getting back to your
3 office realize that that's incorrect, please let us know and
4 we'll correct that in the record.
5 MR. KITCHENS: We certainly will, your Honor.
6 THE COURT: Go ahead.
7 MR. KITCHENS: I was going to say just the second
8 point real quick, but I believe the Court has also entered a
9 consent preliminary order of forfeiture in this case. And we
10 would just ask that the forfeiture be included, incorporated
11 in the judgment and commitment order as well.
12 THE COURT: Okay. It will be.
13 And, Ms. Walker, have I already signed that or do you
14 have it for me?
15 COURTROOM DEPUTY CLERK: I'll have to print it out
16 for you, sir.
17 THE COURT: That will be included, and I will sign
18 that at the conclusion of this proceeding.
19 Anything else from either side?
20 MR. MENDELSOHN: Nothing from the defense. Thank
21 you.
22 MR. KITCHENS: Nothing else from the government.
23 THE COURT: Mr. Gaines, you can appeal your
24 conviction if you believe that your guilty plea was somehow
25 unlawful or involuntary or if there's some other fundamental
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1 defect in the proceedings that was not waived by your guilty
2 plea. You also have the statutory right to appeal your
3 sentence under certain circumstances, particularly if you
4 think the sentence is contrary to law.
5 However, a defendant may waive those rights as part
6 of a plea agreement, and you've entered into a plea agreement
7 which with very limited exceptions waives most of your rights
8 to appeal the sentence itself. Such waivers are generally
9 enforceable, but if you believe the waiver is unenforceable,
10 you can present that theory to the Appellate Court. With few
11 exceptions, any notice of appeal must be filed within 14 days
12 of judgment being entered in your case.
13 If you're unable to pay the cost of your appeal, you
14 may apply for leave to appeal in forma pauperis or without
15 payment of fees. If you so request, the Clerk of Court will
16 prepare and file a notice of appeal on your behalf. On appeal
17 you may also apply for court-appointed counsel.
18 If you have any further questions about your right to
19 appeal, I'm sure that Mr. Mendelsohn would be happy to advise
20 you further on this matter.
21 And Ms. Walker just advised me that I did sign the
22 consent order it looks like on August 4th of this year.
23 Mr. Gaines, do you have any questions about anything
24 that I've said at today's sentencing hearing, sir?
25 THE DEFENDANT: No, your Honor.
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1 THE COURT: Counsel, anything else that we need to
2 discuss?
3 MR. KITCHENS: No, your Honor.
4 MR. MENDELSOHN: No, Judge. Thank you.
5 THE COURT: All right. Good to see all of you.
6 Ms. Walker, Ms. Coudriet, Officer and Officer Ridley,
7 thank you as well.
8 Mr. Gaines, best of luck to you, sir. I think
9 Mr. Mendelsohn did a fine job of advocating for you in this
10 proceeding, both before me but as importantly I would say I'm
11 sure in his communications with Mr. Kitchens. It made it an
12 easy decision for me here that counsel for both the government
13 and your counsel agreed on the results here.
14 I obviously considered the 3553(a) factors
15 independent of their arguments, but one thing I always
16 consider, and I believe the law requires me to consider, is
17 the arguments they make as to those factors. And when, like
18 here, they agree, it can sometimes be difficult for me to do
19 anything but that under the facts, and that's what I thought
20 was appropriate here.
21 I do applaud you for your service to our country.
22 And I'm sorry that you got involved in this. I hope that you
23 will be infinitely more careful going forward and make sure
24 that you have close family or friends helping you and advising
25 you as you go through the rest of your life so that no one
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1 else hopefully will take advantage of your condition.
2 Does that make sense, sir?
3 THE DEFENDANT: Yes, your Honor.
4 THE COURT: Okay. Best of luck to you.
5 Everybody takes care.
6 That concludes this proceeding.
7 (PROCEEDINGS REPORTED WERE CONCLUDED AT 1:52 PM.)
8 ___________________________
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1 C E R T I F I C A T E
2
3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF GEORGIA
5
6 I do hereby certify that the foregoing pages are a true
7 and correct transcript of the proceedings taken down by me in
8 the case aforesaid.
9
This the 29th Day of January, 2024.
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13
14 ________________________________
15 PENNY PRITTY COUDRIET, RMR, CRR
OFFICIAL COURT REPORTER
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